In the Matter of the Marriage of Carlos Y. Benavides, Jr. and Leticia R. Benavides v. . ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-24-00006-CV
IN THE MATTER OF THE MARRIAGE OF CARLOS Y. BENAVIDES, JR. AND
LETICIA R. BENAVIDES
From the County Court at Law No. 1, Webb County, Texas
Trial Court No. 2011PB6000081L2-A
Honorable Hugo Martinez, Judge Presiding
PER CURIAM
Sitting: Beth Watkins, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: May 1, 2024
DISMISSED FOR WANT OF JURISDICTION
On January 3, 2024, appellant Leticia R. Benavides filed a notice of appeal indicating that
she wished to challenge the trial court’s October 5, 2023 order on her Motion to Modify Temporary
Orders Pending Appeal. The clerk’s record, which was filed on February 7, 2024, shows the
challenged order arose out of appellant’s request for temporary orders pending appeal pursuant to
section 6.709 of the Texas Family Code.
Section 6.709 provides, “In a suit for dissolution of a marriage, on the motion of a party or
on the court’s own motion, after notice and hearing, the trial court may render a temporary order
as considered equitable and necessary for the preservation of the property and for the protection
of the parties during an appeal[.]” TEX. FAM. CODE ANN. § 6.709(a). “The trial court retains
jurisdiction to modify and enforce a temporary order under this section unless the appellate court,
04-24-00006-CV
on a proper showing, supersedes the trial court’s order.” Id. § 6.709(j). If a trial court renders or
modifies a temporary order under section 6.709, a party may seek review of that order by: “(1)
motion filed in the court of appeals with jurisdiction or potential jurisdiction over the appeal from
the judgment in the case; (2) proper assignment in the party’s brief; or (3) petition for writ of
mandamus.” Id. § 6.709(l). “A temporary order rendered under [section 6.709] is not subject to
interlocutory appeal.” Id. § 6.709(m).
Here, the “judgment in the case”—the final decree in the underlying divorce proceeding—
has already been considered by this court, and appellant’s petition for review from our opinion and
judgment in that appeal is currently pending in the Texas Supreme Court. See In re Matter of
Marriage of Benavides, No. 04-20-00599-CV, 2023 WL 1806844, at *14 (Tex. App.—San
Antonio Feb. 8, 2023, pet. filed) (affirming the final decree of divorce); see also TEX. R. CIV. P.
301 (“Only one final judgment shall be rendered in any cause except where it is otherwise specially
provided by law.”). The plain language of section 6.709 does not appear to authorize a new,
independent direct appeal from the order appellant seeks to challenge here. See TEX. FAM. CODE
§ 6.709(l), (m).
On February 15, 2024, we ordered appellant to show cause in writing why this appeal
should not be dismissed for want of jurisdiction. On March 18, 2024, appellant filed the response
required by our order. In her response, appellant argues this court has “potential jurisdiction over
the appeal from the judgment in the case” because the Texas Supreme Court may remand her
appeal from the final divorce decree back to this court. Assuming, without deciding, that this
interpretation of “potential jurisdiction” is accurate, appellant’s notice of appeal in this case is not
a motion or brief filed in the appeal from the final divorce decree. TEX. FAM. CODE § 6.709(l)(1),
(2). Additionally, neither appellant’s notice of appeal nor her response to our order satisfy the
requirements of a petition for writ of mandamus. Id. § 6.709(l)(3); see also TEX. R. APP. P. 52.3.
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04-24-00006-CV
Appellant’s notice of appeal in this case is an interlocutory appeal from the denial of her motion
to modify a temporary order, and Section 6.709(m) of the Texas Family Code provides that an
interlocutory appeal is not permitted under these circumstances. See id. § 6.709(m).
In her response, appellant asks us to abate this appeal rather than dismissing it, noting that
we have abated three related appeals pending the resolution of her petition for review in the Texas
Supreme Court. We decline to do so in this case. Even if we assume the Texas Supreme Court will
eventually rule in appellant’s favor in the appeal from the final divorce decree, Section 6.709(m)
precludes an interlocutory appeal under these circumstances. See id.
For these reasons, we dismiss this appeal for want of jurisdiction.
PER CURIAM
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